Limitation Periods in Actions Against Police

The Court of Appeal recently upheld a motions court judge's decision granting summary judgment in an action against police based on an expired limitation period .

In Cassidy v. Belleville, 2015 ONCA 794, the plaintiff alleged she was stopped by police in August 2009, who informed her she was driving a stolen vehicle and confiscated the car, forcing her to walk home.  She alleged she was pregnant at the time and the incident caused medical complications. She wrote to a lawyer six days after the incident asking whether she should commence a civil action but did not pursue a lawsuit at that time.  Approximately one month later (September 2009), she made a complaint to the Belleville Police and received a reply in June 2011. The complaint was partially upheld in November 2012.  The plaintiff waited until October 2013 before commencing her action, four years after the incident.  She argued she did not discover her claim until after the complaint was upheld as she was unaware of the standard of care until that time.

The motions judge disagreed, as did the Court of Appeal.  Section 5(2) of the Limitations Act provides a presumption that the limitation period begins to run the date of the incident unless the contrary is proven and there was nothing to rebut the presumption.  Expert evidence was not needed to discover the claim; the plaintiff was aware of the offending conduct, the identity of the offender and the nature of her injuries from the time of the incident.  The results of the complaint investigation may have provided additional information but were not necessary to trigger the limitation period.

Cassidy is of assistance in police actions, but may also extend to other circumstances where plaintiffs have attempted to extend limitation periods by waiting on administrative decisions.

Instructing Letter Does Not Have to be Produced in Advance of Examination

One issue that arises periodically in personal injury cases is whether a party must produce counsel's letter of instruction to its expert.  In Nikolakakos v. Hoque, 2015 ONSC 4738 (S.C.J.), Master Graham considered whether the defendant was required to produce the letter of instruction to the plaintiff in advance of the plaintiff attending an independent medical examination.

Master Graham held that the instructing letter does not have to be produced until the party elects to call the expert at trial.  Even after the report is served, the instructing letter does not have to be produced pending the defendant's decision whether to call the expert at trial.  As a result, the defendant did not have to produce the letter of instruction in advance of the independent medical examination.

What Is Insurance Really For?

Thanksgiving has almost arrived. This is the time of year when we sit back and reflect on all the things that we are thankful for. What immediately comes to mind?

For most of us its things like our family, our home, and our good health. And guess what they have in common? All of these things are what insurance protects!

That’s why it is so important to me that my clients have excellent insurance coverage.

It’s not just about having an ID card in your car so you don’t get a ticket or fulfilling your mortgage company’s minimum loan requirements.

Insurance is there to make sure that if the worst happens, you can recover from it. It might not be easy, but we’re here to ease the financial burden after your house burns own or a loved one passes away.

All of those TV commercials that just tell you to find the cheapest rate are completely wrong! Of course no one wants to pay more than they have to, but it’s not the most important part of the equation.

Rather than looking for a cheap bare bones policy, take the time to interview and meet with local agents. See who is looking for the best coverage and truly meeting your needs while keeping the rate affordable. Ask about how they handle claims and if they do annual policy reviews.

This Thanksgiving, our agency is extremely thankful for all of our wonderful clients. If you need a local agent to look out for your most prized possessions, give us a call at

888-565-2212 today for a free no-obligation quote. Bryan Insurance is Long Island’s leading homeowners insurance agent.

Covenant to Insure Did Not Bar Crossclaim

A recent decision looked at whether a contractor could crossclaim against a subcontractor or whether the crossclaim was barred as a result of the covenant to insure between the parties.  In William Osler Health Centre v Compass Construction Resources Ltd., 2015 ONSC 3959 (S.C.J.), the contractor, Compass, was hired by the plaintiff to do kitchen renovations at the Hospital and subcontracted part of the project to Black Creek.  The contract between the Hospital and Compass contained a covenant to insure which required Compass to obtain all risks property insurance.  The covenant to insure contained reference to the terms and conditions of IBC 4042.  IBC 4042 contains language that defines the “Project Site” as the “property in the course of construction”.

 

Black Creek argued that under the principle of tort immunity, when one party to a contract covenants to obtain insurance for another party, this signifies an assumption of the risk and the party obtaining the insurance cannot sue the other party for the losses which are insured. Compass accepted that under the principle of tort immunity, it could not crossclaim for damages to the kitchen, but argued that it could maintain a crossclaim for damages to the rest of the hospital. 

 

The Court found that Compass’ covenant to insure did not extend to the entire Hospital and only covered the Project Site (namely, the kitchen). Thus, the Court held that Compass could crossclaim against Black Creek for damages to the Hospital outside of the kitchen, and was not barred by the covenant to insure.  If Compass’ insurance were intended to cover the entire hospital, the premiums and coverage limits would be much higher and closely resemble that of the Hospital’s; Justice Firestone held that it stood to reason that the covenant to insure only covered the Project Site and not damage done to the entire hospital.

 

Top Causes of Fine Art Damage

Whether you’ve spent a lifetime acquiring a world-class collection, inherited family heirlooms or simply purchased objects to decorate a home, the condition of each piece will impact its financial worth.

Surprisingly, most art-related losses are caused by circumstances that are under your control to manage (or avoid). Along with distinct insurance coverage, a better understanding of the prevalent risks can help you manage your collection more effectively over time. Consider the following: 

1. Installation
   Inadequate installation is one of the most frequent causes of damage to private collections, so whenever possible, valuable works should be installed under the guidance of a professional art handler. It is always good practice to use two hooks and two wires for hanging pictures and mirrors, as the redundancy adds stability and decreases likelihood of loss should one hook fail.
2. Placement
   When deciding on where to install your art, avoid accidental damages by looking beyond the aesthetics of your home by considering the location of doors and pathways. Do not place objects in areas that are highly trafficked, above fireplaces, or beneath air vents. To limit long term damage caused by the harmful effects of sunlight, place objects out of direct sunlight and consider installing UV-filters on your windows.
3. Environment
   Drastic fluctuations in temperature and humidity can have a negative long term effect on art and antiques as materials dry out or expand and contract over time. As much as possible, maintain a consistent temperature and relative humidity (RH) in rooms containing works of art. In homes with climate control systems, the environmental levels best suited for a general collection are 68-72 °F and a relative humidity of 45–55%. Consult a conservator for specific environmental recommendations for your collection.
4. Theft It is no secret that works of art are attractive targets for thieves, although surprisingly, most art thefts are crimes of opportunity that easily could have been prevented.  Secure the “envelope” of your home with a central station burglar alarm with motion sensors and contacts on all doors and windows. For jewelry and other portable valuables, install a safe that is bolted in to the fabric of your home.
5. Fire
   Every minute a fire burns it doubles in size, which means that early detection is critical to saving lives and property. To best protect your home, family and collection, install a centrally-monitored smoke detector in every area of your home and keep annually inspected fire extinguishers handy. Monitored heat detectors can be used in kitchens and unfinished basement areas.
6. Storage Ideally, all items that are not installed in your home should be stored off-site in a professional climate-controlled facility. If that is not feasible, dedicate one room in your home for art storage only. To protect items from leaks and spills, never store anything on the floor, even temporarily. If pictures need to be stacked, stack them front-to-front and back-to-back, alternating vertically and horizontally to minimize the chance of one pushing into another.
7. Emergencies Writing a collection-specific emergency plan will ensure that you and your service providers act efficiently and effectively to protect your collection before and after a catastrophe.  A standard plan includes: a priority list of items to be removed; a communication list with contact information; a list of tools and equipment needed; wrapping and handling instructions; the locations of gas, water, and electricity shut-offs, with instructions; training an emergency response team; and a conservation plan for the post-event period.
8. Documentation Maintaining up to date inventory records reduces the likelihood of mysterious disappearance and an inventory with images helps expedite the claims process in the unfortunate event of a loss. The format you use can be as simple as a comprehensive list, but we recommend entering descriptions and images into a secure computerized collection management database, with a copy stored off site.
9. Appraisals The value of your collection will increase over time, regardless of seasonal or annual trends. Since appraisals are used as the basis for insurance coverage, if a piece is damaged, lost or stolen, an outdated value could limit your ability to be fully compensated under your insurance policy. Typically, we recommend that appraisals be updated no less than every three to four years. Consult your appraiser to find out what time-frame is recommended for your collection.

At the Bryan Insurance Agency, we have risk management experts in high value homes and fine art collections. We are the leading insurance agents for home insurance in Long Island and New York. Contact us today to find out how to protect your priceless art collection. 888-565-2212 or www.bryanagency.com/contact 

Reprinted with permission from AIG Premier Client Group. Bryan Insurance Agency is a licensed agent of AIG Premier Client. For more information, visit AIG.com 

Loss Transfer and the Fault Determination Rules

The Court of Appeal recently considered the interplay of the Fault Determination Rules in a loss transfer context.

In State Farm Mutual Automobile Insurance Co. v. Old Republic Insurance Co. of Canada, 2015 ONCA 699 (C.A.), there was a multi-vehicle collision in which a Pepsi truck rear-ended a Dodge, which in turn rear-ended a Nissan.  Old Republic insured the Pepsi truck and State Farm insured the Nissan.  The driver of the Nissan collected accident benefits from State Farm, which in turn sought to be indemnified by Old Republic under the loss transfer provisions of the Insurance Act.  The issue on appeal was whether the Pepsi truck was only responsible for the initial collision with the Dodge or whether it was responsible for the entire chain reaction.

The Court of Appeal held that the Pepsi truck (and its insurer, Old Republic) was 100% responsible only for the collision between it and the Dodge, not the entire chain reaction.    As a result, Old Republic was not required to indemnify State Farm for accident benefits paid to its insured.

The Court's interpretation helps to clarify an area in which there was previously conflicting lines of case law.

Supreme Court Dismisses Westerhof Appeal

We previously blogged on Westerhof v. Gee, where the Court of Appeal held that non-party experts such as treating health practitioners may give opinion evidence formed in the course of treatment or based on observations formed outside of the litigation (such as accident benefits assessments).

The case was appealed to the Supreme Court of Canada.  On October 29, 2015, the Supreme Court dismissed the application for leave to appeal.  As a result, non-party experts will continue to be permitted to give opinion evidence without complying with r. 53.03, subject to the court's gatekeeper function.

The companion appeal in Baker v. McCallum was also dismissed.

November Home Maintenance Tasks

Every month, we share easy tasks you can do to keep you home in tip-top shape all year long.  So here are a few tasks you can take on in November!

CO & Smoke Detectors  - I’m sure you already have heard us tell you that when its time to “Fall Behind” with our clocks, its also a great time to replace the batteries in your CO & smoke detectors.  But just in case you forgot or maybe all of your clocks reset themselves automatically, I’ll remind you again about those batteries. Take a few quick minutes to test your CO & smoke detectors. Even with new batteries sometimes smoke detectors can still wear out. If you have an old one it might be a good idea to replace it completely.

Maintain Large Appliances - Appliances are a big long-term investment!  That’s why it’s important to take good care of them all year long.  Doing a few quick things now can save you lots of money in the long run. Your refrigerator is a great place to start.  Accumulating dust can make your fridge cooling system less efficient. 

To prevent trouble, regularly pull the fridge away from the wall and clean the condenser coils with a vacuum cleaner.  It’s also a good idea to dust and clean the front lower grille.  This five minute task can add years of service to your refrigerator!

Clean The Oven & Stove Drip Pans - Next move on to your stove.  It’s another appliance that needs a good regular cleaning to keep it working well.  Many ovens have a self-cleaning feature that will do the hard work for you. The only problem?  It can take a while to run the cleaning feature and it usually smells pretty bad while it’s running.  Save this task for a nice day and open up the windows to keep it well ventilated.  Check your stove manual for instructions and take a few minutes to clean the burners too. 

Have Problem Trees Trimmed - Cold weather has arrived.  Have you noticed any large branches hanging over onto your roof?  Get them trimmed as soon as possible.  A good ice storm can cause branches to break onto your roof leading to more damage and insurance claims. 

Save on Home Insurance - Homeowners Insurance is an important part of protecting your home and belongings.  To make sure you have the best coverage, call the Bryan Insurance Agency today at 888-565-2212 or visit us online for a free, no obligation quote. 

At the Bryan Insurance Agency, we are the leaders in homeowners insurance in New Windsor, Long Island, and the surrounding New York areas. We specialize in homeowners insurance and mobile home insurance.

Litigation Insurance Does Not Prevent an Order for Security for Costs

The fact that a plaintiff obtains litigation insurance does not prevent a court from making an order for security for costs.

In Shah v. Loblaw Companies Ltd., 2015 ONSC 5987 (S.C.J.), the plaintiff claimed he slipped and fell on a mat at a grocery store in 2012.  At the time of the incident he was a permanent resident of Canada, but his permanent resident card expired in 2013.  He returned to India and did not returned to Canada.  The defendants brought a motion for security for costs.  In response, the plaintiff secured a Legal Protection Certificate and Indemnity Agreement.  He opposed the motion for security and argued that the insurance plan was sufficient security for the defendants.

The Court rejected the plaintiff's argument.  The policy contained a number of exclusions where the insurance proceeds would not be paid, such as where the plaintiff does not accept his counsel's recommendation to accept an offer to settle, decides to represent himself, fails to attend a defence medical examination, provides materially misleading information and so on.  The defendants had no control over the circumstances and if the policy were cancelled, the defendants would have no security in the event of an adverse costs award against the plaintiff. 

Justice Lemon comments that other judges have considered the existence of insurance as a factor in determining whether security for costs should be awarded, but that the circumstances of the case and terms of the policy should be considered.  It would seem important to obtain production of such a policy in the event that the plaintiff raises such an issue in response to a motion for security for costs.

Plaintiffs Who Settle for Less than Tortfeasor's Limits May Not Pursue Underinsured Claims

A claim against an insurer pursuant to the underinsured provisions of the policy has been rejected since the plaintiffs settled against the tortfeasor for less than his limits.

In Kovacevic v. ING Insurance, 2015 ONSC 3415 (S.C.J.), the plaintiffs were injured in 2004 in a motor vehicle accident in Florida.  At the time, the plaintiffs were insured by ING; the policy had a $2 million limit and included the OPCF 44R - Family Protection Endorsement.  The Florida defendant had a policy of insurance with a $1 million limit.  The insurer, Lincoln General, elected to go into a "voluntary solvent run-off" in 2009 which resulted it in ceasing to write new policies but it continued to pay its existing obligations and liabilities.  There was no evidence that Lincoln had become insolvent at the date of the settlement or thereafter.

In 2010 the plaintiffs settled their Florida action for $300,000 without ING's knowledge or consent and then sought to recover under their own policy's underinsured driver provisions.  ING brought a motion for summary judgment.  The plaintiffs argued that settling at less than the policy limits did not disentitle them to recovery under the OPCF 44R.  They also argued that the case was unique as the possibility of Lincoln becoming insolvent meant the limits of the policy were unavailable and a settlement for less than the limits was provident.

Justice MacKenzie granted summary judgment and dismissed the claim.  The plaintiffs were not entitled to settle the Florida action for less than the limits then pursue an underinsured claim.  The claim that Lincoln was not solvent or that the policy limits were not available was not accepted.

Strong Position at Mediation Does Not Result in Increased Costs After Trial

Sections 258.6 and 258.6 of the Insurance Act impose an obligation on insurers to settle claims as expeditiously as possible and to participate in mediation.  Failure to do so shall be taken into consideration when a court is awarding costs.

In Ross v. Bacchus, 2015 ONCA 347 (C.A.), the jury awarded the plaintiff $248,000.  The trial judge awarded the plaintiff $217,000 plus HST in costs, including an award of $60,000 on the basis that the insurer failed to comply with ss. 258.5 and 258.6. 

The action was commenced in 2010 and the defendant offered to settle the claim for $40,000 in 2011, although the offer was revoked in 2012.  Three weeks before the trial was scheduled to commence, the plaintiff offered to settle the action for $94,065 plus interest and costs, and requested mediation for the first time.  Defence counsel responded the next day with an offer of $30,001 plus interest and costs, and agreed to attend mediation, but advised that his clients were "not interested in settling this case".  The mediation took place four days before trial.  The trial judge described the insurer's participation in mediation as a "sham" based on counsel's statement.

The Court of Appeal allowed the costs appeal and held that the $60,000 award was not appropriate.  Justice Doherty held that a clear statement of the insurer's intent does not mean it has failed to settle expeditiously or participate in a mediation:

[46]      The costs sanctions in ss. 258.5 and 258.6 can only serve their intended purposes if the facts justify the imposition of those sanctions. An insurer’s statement on the eve of trial that it is not prepared to settle a claim cannot be equated with an insurer’s failure to “attempt to settle the claim as expeditiously as possible.” Nor can an insurer who actually participates in a mediation be declared to have failed to participate simply because the insurer indicated prior to the mediation that it was not prepared to settle the claim. A clear statement of the insurer’s position going into the mediation, even a strong statement, does not preclude meaningful participation in a mediation.

 Although ss. 258.5 and 258.6 make mediation mandatory, it is important to remember that the insurer is still entitled to take strong positions without being subjected to an additional costs penalty.

October is Fire Prevention Awareness

October is officially Fire Prevention Awareness. Although Fire Prevention is technically October 4-10, 2015, we believe it should be something you and your family practice year round. As your insurance agent and coming from a family of volunteer fire fighters, this is an issue that is very important to us! Unfortunately, we've seen clients, friends, and family all suffer from home fires, and we want to share some things you can do to prevent a disaster.

Beyond basic fire prevention, like checking electrical cords and not leaving a pot unattended on the stove, there are several important things to do with your children or grandchildren to make sure they're safe 

First, create a PLAN. When children know what to expect, they can remain calm, even during an emergency. Help your child know exactly what to do if a fire occurs.

Stress the importance of getting out of the house and to your family meeting spot.  Choose an area a safe distance from the house where children should go if making a fire escape. It could be a street light, mailbox, or neighbor's tree.

If you have pets, tell your kids that your pets will find their own way out safely and that they should never go back to rescue the pet on their own.

As a family, go through each room of the house and discuss TWO different ways to get out if a fire occurs. Let children practice opening a latch and unlocking doors too. Remember smoke rises, so teach them how to stay low and exit safely. And show them how to always test the door handle before opening. 

Now host a fire drill! Make the practice drills fun and informative. Create sample scenarios and build up your kid's confidence. They'll be better prepared for a fire and you will too! Here is a great tool with games for kids with Sparky the Dog on Fire Prevention. 

When it comes to any sort of emergency situation, people are what matter most. Take precautions to protect your loved ones and let your professional insurance agents take care of protecting your home and belongings! Call us for a free quote on your Homeowner's Insurance today! 888-565-2212 or visit us online for a homeowners quote. At the Bryan Insurance Agency we are the top agency in New Windsor and Long Island for home insurance. 

Pre-Judgment Interest in Auto Claims

We previously blogged on Cirillo v. Rizzo, where the Court held that s. 258.3(8.1) of the Insurance Act should be applied retroactively (the section provides that pre-judgment interest should be calculated in accordance with s. 127 of the Courts of Justice Act). 

Perhaps unsurprisingly, another judge has come to the opposite conclusion.  In El-Khodr v. Lackie, 2015 ONSC 4766 (S.C.J), Justice Toscano Roccomo held that s. 258.3(8.1) is substantive law, therefore it cannot be applied retroactively.

Until there is appellate authority on this issue, it may be that the calculation of PJI in motor vehicle actions is a matter for negotiation in settlement discussions.

Contracting out of the Insurance Act

Section 263 of the Insurance Act provides that in cases of property damages involving two insured automobiles, the insured is entitled to recover from his or her own insurer.

A recent appeal decision held that although s. 263 precludes tort claims, it permits claims based in contract.

In Hafeez v. Sunaric, 2015 ONSC 4065 (S.C.J.), after a collision in a parking lot, the defendant agreed to pay the plaintiff $15,000 "minus insurance payment".  The vehicle was appraised at $13,500.  The plaintiff was paid $6,500 by his insurer and sought to recover the rest from the defendant pursuant to their contract.  The Small Claims Court judge held the agreement was unenforceable due to s. 263.  The plaintiff appealed.

Justice Perrell allowed the appeal.  The property loss compensation scheme introduced by s. 263 precludes tort claims but does not preclude claims based in contract.

How To Choose An Auto Insurance Deductible

When quoting auto insurance for clients, we frequently discuss how to choose the right deductible.  I thought I’d take a few minutes to share this information here on our website too!

A deductible is the amount you pay out of pocket when you have a claim.  If you have a $500 collision deductible and have an accident, then you would pay $500 towards repairing your vehicle and insurance would cover the rest. The deductible you choose directly relates to the amount of money you spend on premiums each month.  The higher the deductible ($250, $500, $1000, $2000), the lower your monthly cost. So how do you choose?  Cheaper price or lower out of pocket expense? Basically it comes down to pay now or pay later and what you can afford at the time of a loss.

First, look at your emergency savings.  Do you have enough cash available to cover a higher deductible if you had to pay it?  If the answer is no, then you’re better off paying a little extra each month. 

Compare the cost savings.  When we run a quote, we can show you several different options.  Ask your agent to run the premium based on several different deductibles so you can see the actual dollar cost savings. You can always change your mind.  If you’re short on cash now, but know you could afford more out of pocket next year, you’re always able to change.  Keep your deductible in a comfortable range and you’ll always be well protected! 

If you have insurance with us now and would like to see how much your premium can change by changing your deductible give us a call. Or if you are interested in more information and a personalized quote call or visit us online!  (888) 565-2212

At Bryan Insurance we are the leading agent for car insurance for the Hudson Valley, Long Island, and the surrounding New York areas.

Insurer Must Pay for Repairs Associated With Building Code Upgrades

The importance of the wording of exclusion clauses can be seen in Choukair v. Allstate, 2015 ONSC 4989 (S.C.J.).

The Applicant, Choukair, had a Homeowner’s Policy with the respondent, Allstate. On January 20, 2014 there was a total loss fire at Choukair’s residence. As a result, the house had to be rebuilt. Choukair stated that his replacement cost was $450,700.00, plus taxes. Allstate paid Choukair $369,000.00 but refused to pay the balance.

The difference between what Choukair claimed and what Allstate paid related to the increased cost of the rebuild associated with upgrades required as a result of the Building Code, which Allstate stated were excluded by the Insurance Policy.

There was an exclusion clause in the Policy which stated the following:

We do not insure: (5) losses or increased costs of repair or cost of improving or upgrading dwellings or structures due to the operation of any by-law regulating the zoning, demolition, repair or construction of buildings and their related services;

Justice Quigley held that the loss did not result from the operation of a by-law. The increased costs were related to the application of the Building Code, which is categorized as a law and not a by-law.

Allstate therefore had to pay the balance related to increased costs associated with the Building Code upgrades.

Insurers may want to consider the wording of their exclusion clauses as a result.

September Home Maintenance Tasks

Every month, we share easy tasks you can do to keep your home in tip-top shape all year long.  So here are a few simple tasks you can do in September to prepare your home for cool fall weather!

1.)  Check Gutters -  Take a few minutes to make sure your gutters are clear.  With rain and falling leaves, gutters will be working overtime.  By making sure they’re clear now, you’ll avoid water damage later on.  You can either hire someone to do it or do it yourself.

2.)  Clean The Dryer Vent - Lint accumulating in the dryer vent can cause a house fire.  A couple of times per year, unplug the dryer and thoroughly vacuum the area around the dryer vent and hose.  Remember to check the outside vent too!

3.)  Get Your Fireplace Inspected & Cleaned – Do you have a fireplace or woodstove? When was the last time it was cleaned & inspected? Now is a great time to make sure that your chimney and fireplace are all in good working order. A little maintenance now can help prevent a bigger problem later on. Schedule it now before it gets cold.   

4.)  Gather Firewood - Will you be burning a wood stove or fireplace this winter?  Start gathering up firewood now and save yourself from the task when it’s cold outside. 

5.)  Get Ready For Autumn - Now is a great time to start planting some fall flowers.  Mums make a great addition to your front porch! 

6.)  Save On Home Insurance - Homeowners Insurance is an important part of protecting your belongings.  To make sure you have the best coverage, call us today for a free, no obligation quote.  

Want more tips? Call or visit us online. Bryan Insurance is the leading homeowners insurance agent in the Hudson Valley, Long Island, and New York areas. 

The New Deductibles Under the Insurance Act

The Insurance Act and its regulations have been amended to increase the amount of the deductibles.  As of August 1, 2015, the deductible for non-pecuniary damages is $36,540 (up from $30,000) and for Family Law Act damages it is $18,270 (up from $15,000).  In addition the $100,000 threshold above which the deductible applies has been raised to $121,799 and the $50,000 threshold for Family Law Act damages to $60,899.  The deductibles will be indexed for inflation on January 1st of each year beginning in 2016.

In addition, s. 267.5(9) has been amended to provide that costs are to be determined "with regard" to the effect of the deductible, i.e. costs are now net of the deductible.

Did You Know? Life Insurance Is Affordable.

Did you know that September is Life Insurance Awareness Month? If you haven’t already seen them, you will probably see TV commercials and magazine articles talking about why this coverage is so important all month long. And you probably already know it’s important. But I know that even with the best intentions, it doesn’t always mean that you’ve got your policy set up yet!

The Life Foundation says that only 62% of people who believe they need life insurance, actually have it. And even then, those that do have it only carry enough to replace their income for 3.6 years. If you have young children to support, that is simply not enough time! And if you're skipping life coverage all together, then you are putting your family at risk.

So why do people wait too long to purchase life insurance? Well, the Life Foundation also says that 86% of Americans say they haven't purchased it because it's "too expensive.”  Many overestimate the cost by more than 2X!

Life Insurance rates are based on a number of factors, including age, health conditions, and smoking status. By not smoking and purchasing when you're younger, you can save a substantial amount of money. In fact, many term life policies are less than $30 per month! That’s $1 per day!

Even if you are a smoker, older, or have health issues, doesn’t mean you won’t be able to afford it. Getting some life insurance is still better than none.

Here’s what we recommend...call the office and set up an appointment with one of our life insurance specialists. Bring information on your annual income, as well as any debts (like your mortgage). We can give an accurate picture of how much coverage you need as well as different ways to make it affordable. We can find a plan to fit your budget.

Don’t wait another minute! Call us today to set up an appointment. (888) 565-2212 or visit us online.

Teenage Driver? Don't Sweat It!

Do you have a teenage driver? Or are you sweating about the thought of your tween driving in a year or so? Back to school time is a great opportunity to think about car insurance savings!  

Having a teenage driver can be stressful enough without even adding in the cost.  You worry, first and foremost, about their safety. And then of course there are a lot of costs! Things like purchasing an additional vehicle, getting licensed, and paying more for insurance. 

Fortunately, when it comes to the insurance, it doesn’t have to be as detrimental as you think. You have options.

First you want to think about the vehicle your teen will be driving.  Premiums are higher on vehicles with comprehensive and collision coverage, which pays to fix your vehicle after an accident.  When you have a car that has only liability insurance (which pays only for damage your driver does to someone else’s car), you pay a lot less.

If you are purchasing a car for your teen and need to watch your budget, consider buying an older reliable model for cash that will not require comprehensive and collision coverage. Not a hoopdie, but a car that you can feel safe with your child behind the wheel while not breaking the bank. If you are thinking about one car or the other, call us. We can help you weigh the cost and the risk to see if it is a good option for you.  

You also want to take advantage of all available discounts.  These vary by policy but typically include a discount for driver's ed and one for having good grades.  With school about to start, it's a great time to setup an incentive plan with your teenager to make sure they keep those grades up and your premiums low! Most policies will give you an additional 10% off for a B or above average and driver’s ed can be up to 20%. On top of these if your child also takes an accident prevention course, this can be an additional discount as well. They can take the course online now as well at www.HVDDonline.com

Still have questions?  Call us to review your current policy and look for ways to help you manage the cost of having a teenage driver.  888-565-2212 or visit us online at www.bryanagency.com

At the Bryan Insurance Agency we are the leading local agent in New Windsor, Long Island, and New York for teenage drivers and car insurance.

Statutory Third Party Must Answer Questions About Denial of Coverage

A recent decision requires a statutory third party to answer questions about why it denied coverage to its insured.  In Lica v. Dhaliwal, 2015 ONSC 3888 (S.C.J.), State Farm denied coverage and added itself as a statutory third party.  The plaintiff asked questions by written interrogatory requesting details as to why the insurer denied coverage.  State Farm refused to answer and the plaintiff brought a motion, arguing he needed the information in order for him to claim underinsurance coverage from his own insurer under the OPCF 44R and to permit his insurer to assess its potential liability.  State Farm argued that the main action was not the proper forum to decide coverage issues so the questions were improper.

Justice Price ordered State Farm to provide details of the denial of coverage.  A court requires the information to determine whether State Farm's allegation the insured breached the conditions of his policy are borne out by the evidence.  If the denial was justified, the plaintiff would have access to the coverage provided by his OPCF 44R endorsement.  Justice Price held that where coverage has been denied, the court should determine whether an insurer must disclose the information and documents relating to its decision on a case by case basis, having regard to whether the documents are relevant, whether their disclosure would cause prejudice, whether they are protected by litigation privilege and whether that privilege, if it exists, has been waived.

Statutory Third Parties will have to carefully consider what must be disclosed as a result of the Lica decision.

9 Ways To Save On Your Car Insurance

Looking for ways to keep your auto insurance premiums manageable?  Here are 9 ways you can save on your insurance (without sacrificing coverage.)

1. Driving Record

Your driving record plays a big role in how much you pay for insurance. By keeping a clean record for 3-5 years, you can save hundreds of dollars! Be a cautious driver, don’t speed, and you'll lower your premiums.

2. Driving Course

Defensive driving courses are an easy way to achieve an extra discount. They can also help keep a ticket from showing up and messing up your clean driving record. Make sure to call us before taking the class if you're using it for a discount so we can verify that your policy qualifies.

3. Anti-Theft Devices

Installing an alarm or other anti-theft device can lower premiums on your vehicle. Make sure to discuss all features with us, sometimes even power locks and a remote can count!

4. Your Credit Score

While insurance uses a different formula then the credit bureaus, your credit still affects the rate you pay. Good credit can save you hundreds (even thousands) on your premiums! Make sure to review your report on a regular basis and have any mistakes corrected.

5. Where You Live

Rural areas pay less for insurance than the big cities do. It's all about risk and with a large population, there is more chance for an accident. Therefore, where you choose to live can impact your rates. Consider visiting with us before purchasing a home if you’re concerned about the costs (it is based on the zip code).

6. Your Vehicle

The vehicle you choose to purchase also makes a difference! Some vehicles cost a lot more to repair than others, which drives up their rates. Easy way to avoid buying a money-sucker? Call us first and let us quote the vehicle before you sign on the dotted line.

7. How Often You Drive

If you take public transportation and only drive on the weekend, you'll pay less than someone with a long commute. Make sure to review your annual mileage and daily commutes with us (especially if they change) so that you can receive the extra savings.

8. Raise Your Deductible

A higher deductible (your out of pocket cost in a claim) means a lower monthly rate. If you have $1000 in savings and could afford to use it if you had an accident, then you’ll save on your insurance cost by having a $1000 deductible instead of a $250. We can help you review the costs and benefits in your specific situation.

9. Your Agent

And the best way to save? Work with a local agent! You'll get the coverage you need plus you'll have an advocate working on your behalf to find the best rate, all the discounts, and an easy explanation of any gaps in your coverage. It's the #1 way to control your risk, maximize your savings, and protect your family.

We want to be your agent!  Call us to discuss your policy today and let us see how we can save you money on your car insurance! At Bryan Insurance we have over 10 different car insurance carriers that specialize in giving you the best coverage at the best price in New Windsor, Long Island and the surrounding New York area. Call us at 888.565.2212 or visit us online.

No Duty to Defend Parents of Alleged Bully

The Court of Appeal has held that an insurer does not have a duty to defend its insureds with respect to claims that they failed to prevent bullying.

In Unifund v. D.E., 2015 ONCA 423 (C.A.), the insurer refused to defend parents of an alleged bully.  In the underlying action, the plaintiff alleged that the parents' daughter had bullied her at school.  The allegations against the parents were that they knew or ought to have known about the bullying, and failed to investigate it, take steps to prevent it or take disciplinary action. The Unifund policy contained an exclusion which provided as follows:

We do not insure claims arising from:

6. bodily injury or property damage caused by an intentional or criminal act or failure to act by:

(a) any person insured by this policy; or

(b) any other person at the direction of any person insured by this policy;

7.(a) sexual, physical, psychological or emotional abuse, molestation or harassment, including corporal punishment by, at the direction of, or with the knowledge of any person insured by this policy; or

(b) failure of any person insured by this policy to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment.

The application judge held that the exclusion was limited to an intentional failure to prevent physical abuse rather than negligence.  The Court of Appeal allowed the appeal.  Justice MacPherson held that by using the word "failure" in the exclusion clause, it extended to negligence.  Unifund had no duty to defend or indemnify its insureds in the underlying action.

You had a claim. Now what?

It happened. You had a claim. This one was not fixable on your own and you had to call your agent or company to put the claim in. Now what?

Claims can be a stressful process.  I've worked with my clients after car accidents, home fires, storm damage, and even a death in the family.  Insurance claims are often tied to the most stressful events in our lives.

That's why it's extremely important that you work with an agent and a company that you trust and who you know will be able to walk you through the process.

After an insurance claim, you will be assigned to an adjuster who will evaluate your loss.  Most times, they will come out to take a look at what happened and speak to you. The adjuster will determine the settlement amount based on what is fair to put you back to where you were before the claim and also answer any questions you may have.  

So what happens if things don't go smoothly at first?  Maybe you don't agree on the amount or can't get the right documentation?

That's where I come in.

My job, as your agent, is to also be your advocate.  My office goes to work to help you communicate with your adjuster if there is a problem.  That means that when you need help, we're there.

Yes, sometimes you can get cheaper rates with unknown companies.  And you might love being able to buy online without talking to an agent. Sometimes you also get what you pay for. Cheaper doesn’t always mean better especially when you are up to your eyeballs in paperwork from a claim and you feel like no one is listening to you.

But when it comes down to those stressful moments, it's great to have someone you know on your side. Someone who can explain the process or just to listen if you need to talk.  Call my office today and let us protect your family from the next claim.  

At the Bryan Agency, we are your claim advocates. We have over 20 years of industry experience and 15+ in working in and helping people with claims. We are experts at claims in New Windsor, Long Island and the surrounding New York areas. Have a claims question? Call us at 888.565.2212 or visit us online today!

Courts Have Inherent Jurisdiction to Order Assessments by Non-Health Practitioners

We previously posted on the Divisional Court's decision in Ziebenhaus v.Bahlieda (click here for our original post).  In that case, the Divisional Court held that courts have inherent jurisdiction to order a party to undergo an assessment by someone who is not a "health practitioner".  In Ziebenhaus, the particular assessor was a vocational assessor.

The Court of Appeal has now confirmed the Divisional Court's decision at 2015 ONCA 471 (C.A.).
It held:

[13]      The language of s. 105 and Rule 33 does not constitute such clear and precise language. The language of these provisions is permissive, and they do not state that a court cannot order an examination by someone who is not a “health practitioner”. Moreover, the conclusion that a superior court judge has the inherent jurisdiction to order such an examination does not conflict with the relief available under s. 105, nor should it be seen as extending the reach of that section. Inherent jurisdiction should be exercised only sparingly and in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness.

Ziebenhaus may make it easier to obtain orders compelling plaintiffs to attend independent medical examinations with non-medical practitioners; however, it will still be important to have good supporting materials to show the assessments are necessary to ensure justice and fairness.

3 Easy Home Maintenance Tasks for July

Regular home maintenance is important and frequently overlooked, especially in the summer. Let’s face it, the summer goes by so fast, who has time to worry about all the inner workings of the house? We tend to forget about our air conditioning system. That is, until it quits working on the hottest day of the summer! That's why, we're providing a few simple tasks and reminders you can do each month to keep your home in tip top shape all year long.

Here’s some quick Home Maintenance To-Do’s that take less than 30 minutes each!

1.)  Do an energy audit.  Hot weather is a great time to find all the spots in your home where air may be sneaking in.  Plugging those leaks can save as much as 20% on your heating and cooling bills!  

Look at every door and window area for places where you can see daylight through a crack or feel a draft.  Don't forget the mail slot and fireplace too!  If you'd rather use a professional, contact your utility company for a recommendation on a home energy auditor.

2.)  Protect your patio furniture.  You probably have all of your nice outdoor furniture in use right now.  Make sure to take a few minutes to clean it each week (and protect it during storms) and it will last for many years.  

Check the tags on pillows and cushions for specific cleaning instructions and regularly hose down the furniture itself. Remember, patio cushions are a favorite place for busy squirrels so try to keep them protected!  

3.)  Save on Home Insurance.  If we don't currently insure your home, call us for a quote today.  We'll look for every possible discount without sacrificing important coverage.  Great insurance coverage is the best protection you can have!

At the Bryan Insurance Agency, we are the experts at keeping you safe this summer and saving you money. We can help you with your insurance wherever you whether it be New Windsor, Long Island, the Hudson Valley or any area in New York. Call us or visit us online today for a quote on your home insurance. 888.565.2212.

Admissibility of Expert Evidence

The Supreme Court of Canada recently commented on the standards for admissibility of expert evidence.  Although the case originated out of Nova Scotia, it is equally applicable to Ontario and should be taken into account when retaining experts. 

In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 S.C.C. 23,  shareholders started an action against the company's former auditors after a different accounting firm (Grant Thornton) identified problems with the former auditors' work.  In response to the defendant's summary judgment motion, the plaintiffs hired a forensic accountant from Grant Thornton to prepare an opinion.  The motions judge struck out the forensic accountant's affidavit on the basis that she was not an impartial witness; the Court of Appeal allowed the appeal.

The Supreme Court of Canada dismissed the appeal.

The inquiry for determining the admissibility of expert evidence is divided into two steps.  First, the proponent of the evidence must establish the threshold requirements for admissibility (found in R. v. Mohan): relevance, necessity, absence of an exclusionary rule and a properly qualified expert.  Second, the judge must exercise a gatekeeper function and balance the potential risks and benefits of admitting the evidence to determine whether the potential benefits outweigh the risks. Concerns about an expert's independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence.

Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. Underlying the duty are three concepts: impartiality, independence and absence of bias.  The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand.  It must be independent in that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation.  It must be unbiased in that it does not unfairly favour one party's position over another.

A proposed expert's independence and impartiality goes to admissibility and not simply to weight, and there is a threshold admissibility requirement in relation to this duty.  Once the threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis the judge conducts to carry out the gatekeeping role.

In the circumstances, the evidence should not have been excluded as there was no basis to conclude the expert was not able and willing to provide the court with fair, objective and non-partisan evidence.

What To Do When Your Home Is Vacant

Selling your home can be a stressful process, especially when it doesn't move quickly.  With a new job looming or the purchase of a new house, you may have no choice but to leave the home vacant for a short time until it sells.  

The problem?  Vacant homes fall under different insurance rules and can leave you at risk.  Homes are typically considered vacant when the utilities are shut off and/or furniture has been removed.  If you forget to tell your agent that your home is vacant, you might not be covered in the event of a loss

Insurance companies view a vacant home as a higher risk.  There are more opportunities for vandalism and no one living there to protect the home from fire or storm damage. 

So what should you do when moving?

First you need to talk to your insurance agent and get the details on your policy.  Since policies vary by state and insurance company, there is no single right answer.  Sometimes an insurance company can make an exception to your current homeowners policy if you give them a heads up ahead of time.

If you do have to purchase a separate policy to cover your home as a vacant home, many carriers allow you to do this for a shorter period of time such as 3, 6 or 9 month increments.

Explain the situation to your agent.  Ask what coverage is included and what is excluded (specifically for vandalism).  Also, you want to find out what changes can be made to protect your home. For example, investing in an inexpensive alarm or camera system might help not only in the insurance cost but also in your peace of mind. You can also look into having your real estate agent or a property manager periodically check in on the property every few days to be sure that the house is okay.

Selling a home doesn't always follow a quick timeline.  If you're facing the possibility of leaving your home vacant, contact us first and find out how to best protect yourself and your property.  

                                                                             

At the Bryan Insurance Agency, we are the leading agent for vacant homes and homes under construction in the Hudson Valley and Long Island. Contact us for a quick tips sheet on how to keep your home safe. You can reach us at 888-565-2212 or online at http://www.bryanagency.com 

Renters Insurance - Why You Need It

If you are currently renting your home or apartment, it’s time to learn more about renters insurance! 

Homeowners insurance covers the house itself and the items inside.  But if you don’t own the home, you don’t need insurance to cover it.  All you need is coverage for your actual personal belongings.

It might not seem like a lot, but all those little items add up!  When you think about the cost to replace your furniture, dishes, sheets, clothes, books, and everything else filling up your home, it’s probably a lot more than you thought. 

Renters insurance is an affordable way to protect what you’ve worked hard to acquire.  And it’s probably a lot cheaper than you’d expect!  In fact, many times the discount you receive on your auto insurance for having multiple policies can almost pay for the entire renters policy!

Renters Insurance will cover personal belongings within your home as well as a limited amount of property off premises (such as items in a storage building) or your laptop when it’s in the car. 

It also includes important liability coverage.  If you accidentally cause a fire that burns down the property, your insurance pays the landlord to replace it (protecting you from a damaging lawsuit).  In fact, many landlords now require that tenants carry a certain amount of liability insurance before they approve the lease. 

So if you’re renting, it’s time to look at protecting your valuables.  Give us a call today or visit us online and ask for a no obligation quote on renters insurance.  And don’t forget to find out how much you’ll save on your auto insurance too!  

At Bryan Insurance we are the leading experts in New Windsor, Long Island, the Hudson Valley and New York for renters insurance. 

Jury Can Hear Cases Involving Waivers & Volenti

The Court of Appeal has confirmed that juries can hear cases involving waivers.

In Kempf v. Nguyen, 2015 ONCA 114 (C.A.), the plaintiff suffered injuries when the defendant's back wheel clipped his front wheel during a charity bike ride.  The defendant pled volenti and that the plaintiff was contributory negligence, and relied on a waiver signed by the plaintiff.

The trial judge granted the plaintiff's motion to strike the jury notice on the basis that the jury would be confused by the contents of the waiver or misuse it in their deliberations.  She was concerned that the plea of volenti involved a claim for declaratory relief, which is precluded from being determined by a jury.  She also rejected the defendant's suggestion to take a "wait and see" approach.  She struck the jury and found in favour of the plaintiff.

The Court of Appeal allowed the defendant's appeal, holding that it was a reversible error to discharge the jury on the basis that it would be too difficult to explain the law.  Volenti is not a claim for declaratory relief; it is a full defence to a finding of negligence.  Justice Epstein held that "To determine liability, the jury would have to sift through the often conflicting evidence, and make findings of fact and apply the law as explained to them by the trial judge.  This is what juries do every day" (para. 59).

Kempf is helpful in confirming that the right to a jury is an important one, and that juries are capable of hearing a wide variety of cases, including those involving contracts or waivers.